SCOTUS will hear Prop 8 and DOMA challenges

[bluedaisyus]

SCOTUS will review Prop 8. They are also going to be reviewing a challenge to one of the sections of DOMA.

nbcpolitics.nbcnews.com/_news/2012/12/07/15756101-us-supreme-court-to-take-up-same-sex-marriage-issue?lite

[thiswillbe]

Thanks for the update. I was wondering when we'd hear more about this...

[seattlekari]

I'm not sure if the Prop 8 review is good or bad based on various things I've read. Anyone have a take on this?

[llama]

Happy about Windsor (DOMA) being accepted! It's a super strong case and I think given the underlying constitutional argument we have a clear majority in favor of upholding the decision that Section 3 of DOMA is unconstitutional. It's a state's rights issue, and I can see it appealing to more conservative justices as well as our slightly more liberal 4.

To answer the above I'll c/p what I wrote on CE&P: I am really bummed about the Perry case being accepted for review. I'm too much of a pessimist, I guess, but I'd generally prefer for this Court to be as far away from my civil rights as possible. They are extremely unlikely to open the scope of the case again after the 9th Circuit narrowed it down so much, so a ruling upholding the 9th Circuit decision doesn't really do much to change the situation compared to just declining to hear the case. In both cases same-sex marriage would be legal again. Now California same-sex couples have to wait until June for a ruling and it's possible that the 9th Circuit could be overturned, which could actually uphold the ban. On the other hand, while I've said all along that the Perry case is textbook for denying cert. (and it really is) there's another thing it's textbook on, and that's standing. I am not a lawyer, but the 9th Circuit's granting of standing to the Prop 8 proponents was one of the more egregious abuses of standing I've ever seen. Obviously that bit was overwhelmingly negated by the ruling in our favor, but standing probably shouldn't have been granted. It's possible the Supreme Court intends to reverse the 9th Circuit on standing in this case not really because of the specific issue at play (same-sex marriage) at all, but because it opens the door for a whole host of issues related to standing. The standing issue in Perry also relates to the possible standing issue the Court raised about BLAG, so maybe they just wanted to look at the two side-by-side on the standing thing, who knows. But it makes me very nervous.

It should also be noted (again... and again) that no outcome of any of these cases is going to result in same-sex marriage across the US. Even if section 3 of DOMA was struck down same-sex marriage wouldn't be legal anywhere except where it already is. There would be federal recognition where it is legal, but the current bans in most states would stand and Section 2 of DOMA, which allows other states not to recognize same-sex marriages would still stand. I mean, I guess it's technically *possible* that SCOTUS could use the Perry case to decide that there is a 14th amendment right to same-sex marriage, thus invalidating all existing state bans and allowing same-sex marriage in all states, it is just not going to happen that way.

[hlke]

Them taking the prop 8 case makes me pretty nervous, although it's been pointed out that Walker's opinion was written pretty clearly for Kennedy, relying heavily on Kennedy's rationale from Romer v Evans and Lawrence v Texas. So...who knows. I retread Romer and am feeling hopeful that the outcome won't be a ruling that same sex marriage is NOT protected by the 14th amendment, which is the biggest risk of them taking it.

This term is filled w crazy precedent setting cases. In my little fantasy world, Kennedy wants to solidify his legacy on gay rights before he retires.

[ElsaVonM]

Turning over Section 3 without making some kind of 14th Amendment determination overruling the state bans will create such a mess - giving some citizens a set of federal rights while denying others. What will happen to people who get married in Massachusetts but live in Florida? Do they get the federal rights?

My sense, based on nothing but my own practicality and the rapidly shifting political environment, is that they took these cases with the intention of making a final decision and just settling the whole matter. We will see what happens come June!